Mandatory Mediation in the Best Interest of the Child

Abstract: ''One of the gravest responsibilities that can be placed upon the court, and one of the most heart searching, is to determine the proper custodian of a child'' Suzanne Reynolds, Catherine T. Harris, Ralph A. Peeples&semic Back to the future: an empirical study of child custody outcomes&semic North Carolina Law Review, September, part II of the article. At least 30 000 parental couples separate every year in Sweden. Annika Rejmer, Vårdnadstvister 2003, p 16&semic Statistiska Centralbyrån (SCB) 1995:1 p.7-11 Together those parents are responsible for about 55 000 children, which means that at least 25 % of today's 17-year old youngsters have experienced a separation between their parents. Ibid. p. 16&semic SCB 2000:2 p 97 Most of the parents manage to, assisted by the ''Family Court'' of the social services' cooperative dialogues (samarbetssamtal) or family counselling, make own arrangements for their new family situation. However, about 6000 children every year go through court litigation on custody. Changed family patterns and parents in a constant fighting may leave serious psychological traces within the child and the future adult. The 1st of July 2006 (Law 2006:459) new custody rules were implemented in the Children and Parents Code (CPC) and in the Proceeding Code. One of the most significant amendments was the expanded possibility for the court to appoint parents at an early stage of the process, to try to cooperate The Proceeding Code, Section 42 Article 6 and Section 42 Article 17 on child custody, in a time-limited and less expensive alternative, in a mediation procedure. The lawmaker approved for this provision in the best interest of the child. Before 2006 it was only possible for the court to appoint a mediator for the parties in a custody dispute according to Section 21 Article 1 in the Children and Parents Code in the county administrative court. The provision, still in use, is applied to only when custody already is decided on and has to be executed by a new court judgement, for the parents who do not subject themselves to the prior judgement on custody, residence and/or contact rights. This regulation has no actual significance in this paper and will not be further investigated, although mentioned. This study of mandatory mediation in custody disputes introduces the reader to the parental obligation of mediation at an early stage of the custody dispute. Current mediation (voluntary), legislation The Children and Parents Code, Section 6 Article 18a in the Swedish Children and Parents Code (Föräldrabalken (1949:381)), is a time- limited regulation, probably positive on the child when mediation in custody disputes works satisfactorily. Within four weeks, sometimes with some expanded time, the mediator has to try to reach an understanding between the parties, an effort that may take years in court litigation. Ibid. Section 6 article 18a Unfortunately, the court rarely applies to the new rule. The aim of mandating mediation is to facilitate for the children in their parents' separation process considering economizing to the aspect of time to shorten the many hours of anxieties for all parties involved, consequently reducing damages in the family relationships in the best interest of the child. Such changes by law should probably diminish the courts' workloads, the queues to the remaining child custody litigations, and, reduced costs for the society. The mediation regulation from 2006 has rarely been applied to at an early stage in child custody cases in Sweden. Obviously, the intended result from the legislatures, in creating these new rules (New Child Custody Rules (SOU 2005:43)), did not reach their goals through the new legislation. Judges that I have spoken to currently, have said they would like to see mandatory mediation in law, taking into consideration the efficiency included when parents are no longer able to escape cooperation before they head off for a court litigation. Critics on mandatory mediation, made by mandatory adversaries concerning child custody disputes in the United States emerges in the study as well as researcher's comments and reply to the critics. Among all, the American feminists' perspective of mothers not being granted physical custody as often in a mediation process as in a court litigation seem not to be adequate according to the research laid down. The angle of how mediation in case of a history of domestic violence should be conducted is introduced as deviant from other family mediation, demanding specifically cautious measures. Among several states in the United States, the state of California has, since 1981, had mandatory mediation in custody disputes by the recommendation of federal law. Research on some favours and disadvantages of this mandatory dispute resolution form is investigated in this study. Critic presented by the Swedish doctrines is among all that mandatory mediation concerning cooperation not should be effective at the same extent as voluntary mediation. Though, one should bear in mind that trying to cooperate ought to work better via a mandatory regulation than doing no attempt at all. Besides, law and the societal information in mandatory mediation would probably not lead to negative reactions from parents. An obligation to mediate and to cooperate, consequently, for all separated parents, is in the best interest of the child, and a surrender should become easier with a clear provision to lean on.